Should a rapist get Viagra or a robber get a cataracts op?

is a senior research fellow in the Oxford Uehiro Centre for Practical Ethics. He is principal investigator on the Wellcome Trust-funded project ‘Neurointerventions in Crime Prevention: An Ethical Analysis’ and lead researcher in the Oxford Martin Programme on Collective Responsibility for Infectious Disease.

is a senior research fellow in the Oxford Uehiro Centre for Practical Ethics. He is principal investigator on the Wellcome Trust-funded project ‘Neurointerventions in Crime Prevention: An Ethical Analysis’ and lead researcher in the Oxford Martin Programme on Collective Responsibility for Infectious Disease.

is a senior research fellow in the Oxford Uehiro Centre for Practical Ethics. He is principal investigator on the Wellcome Trust-funded project ‘Neurointerventions in Crime Prevention: An Ethical Analysis’ and lead researcher in the Oxford Martin Programme on Collective Responsibility for Infectious Disease.

Suppose a physician is about to treat a patient for diminished sex drive when she discovers that the patient – let’s call him Abe – has raped several women in the past. Fearing that boosting his sex drive might lead Abe to commit further sex offences, she declines to offer the treatment. Refusal to provide medical treatment in this case strikes many as reasonable. It might not be entirely unproblematic, since some will argue that he has a human right to medical treatment, but many of us would probably think the physician is within her rights – she’s not obliged to treat Abe. At least, not if her fears about further offending are well-founded.

But now consider a different case. Suppose an eye surgeon is about to book Bert in for a cataract operation when she discovers that he is a serial bank robber. Fearing that treating his developing blindness might help Bert to carry off further heists, she declines to offer the operation. In many ways, this case mirrors that of Abe. But morally, it seems different. In this case, refusing treatment does not seem reasonable, no matter how well-founded the surgeon’s fear. What’s puzzling is why. Why is Bert’s surgeon obliged to treat his blindness, while Abe’s physician has no similar obligation to boost his libido?

Here’s an initial suggestion: diminished libido, it might be said, is not a ‘real disease’. An inconvenience, certainly. A disability, perhaps. But a genuine pathology? No. By contrast, cataract disease clearly is a true pathology. So – the argument might go – Bert has a stronger claim to treatment than Abe. But even if reduced libido is not itself a disease – a view that could be contested – it could have pathological origins. Suppose Abe has a disease that suppresses testosterone production, and thus libido. And suppose that the physician’s treatment would restore his libido by correcting this disease. Still, it would seem reasonable for her to refuse the treatment, if she had good grounds to believe providing it could result in further sex offences.

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A second answer would appeal to a difference in the effects of the conditions suffered by these two men. The effects of low libido might seem far less pervasive than those of blindness. Diminished libido affects one’s sex life. Blindness affects almost every aspect of one’s life. So refusing to treat blindness will have much more pervasive effects on Bert than refusing to boost libido will have on Abe. And this, some might say, is why Bert has a stronger claim to treatment. But again, difficulties arise. Suppose, again, that Abe’s diminished libido is due to a testosterone deficit. And suppose that deficit does have pervasive effects on his life. Let’s say it causes him to be less aggressive and assertive in all spheres of his life. Before he was virile, ambitious and brash. Now he finds himself reserved, deferential and meek. Nevertheless, it might seem that Abe’s physician could justifiably refuse to correct this deficit if her fears regarding sexual recidivism were well-founded.

There are other differences between these cases, of course. One is that they involve quite different sorts of crime. Perhaps sex offences are a medical issue in a way that bank robberies just aren’t. After all, sex offences directly harm the health – mental, and sometimes also physical – of their victims. With bank robberies, medical effects are presumably less common, and less direct. So perhaps Abe’s doctor has a duty to prevent sex offences, whereas Bert’s doctor has no duty to prevent bank robberies.

Yet again, however, this can’t be the full story. Let’s imagine now that it’s Abe, the sex offender, not Bert, the bank robber, who is going blind. Could an eye surgeon justifiably refuse cataract surgery to Abe on the basis that providing it might lead to further sex offences? Surely not. Even if sex offending is a medical issue, it surely shouldn’t figure in decisions about treating blindness.

If it’s not the nature of the medical condition or the nature of the crime that explains the moral difference between these two cases, then what is it? Perhaps it’s the relationship between them. Consider this: boosting sex drive and curing blindness could both, in some circumstances, contribute to criminal offending. But the way in which they would do so is different. Sex drive can be a motive for sex offending, so boosting sex drive might directly increase a person’s motivation to offend. By contrast, treating blindness directly increases a person’s ability to offend, not his motivation.

But is this difference important, morally? Not obviously. Take Cyd. Like Abe, Cyd has a history of sex offending. And like Abe, he presents to a physician for treatment. However, Cyd’s problem is not reduced libido, but impotence. Could Cyd’s urologist refuse to treat his impotence if she reasonably believed that doing so would lead him to re-offend? I think so. Yet, like treating blindness, treating impotence would contribute to crime by increasing the ability to offend; it would not increase the motivation to do so. At least, not directly. So the distinction between motives and abilities doesn’t seem to provide the explanation we’re after.

Where does all this leave us? Perhaps we simply need to accept that our intuitive responses to these cases are misleading. Perhaps there really is no moral difference between them. The question, then, is which way should we jump? Should we say that, despite initial appearances, the physician must treat Abe’s low libido, just as the surgeon must treat Bert’s blindness, and that having access to medical treatment is a human right regardless of your crime? Or should we say, counter-intuitively, that the surgeon is within her rights to refuse eye surgery to Bert, the bank robber?

One factor here is whether or not we want forensic concerns to pervade the deliberations of our medical professionals. The received wisdom is that doctors should set aside such concerns – they should treat all-comers, without delving into their possible criminal pasts or speculating on their possible criminal futures. This view counts in favour of providing treatment to both Abe and Bert. But the received wisdom of medicine has been wrong before, and cases such as Abe’s at least give us reason to question whether this particular piece of wisdom should be respected.

Another approach would be to trust our intuitions and stick to our guns, holding that there is a moral difference between these cases, even if we can’t explain why. But in that case, we should keep up the search for an explanation. Without one, it is difficult to be sure that what I’m calling an intuition isn’t really just a prejudice.

is a senior research fellow in the Oxford Uehiro Centre for Practical Ethics. He is principal investigator on the Wellcome Trust-funded project ‘Neurointerventions in Crime Prevention: An Ethical Analysis’ and lead researcher in the Oxford Martin Programme on Collective Responsibility for Infectious Disease.

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07 July, 2017

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